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Cross v. Synter Resource Group LLC

United States District Court, M.D. Georgia, Macon Division

April 10, 2019

ASA CROSS, Plaintiff,



         Defendant Synter Resource Group, LLC and Plaintiff Asa Cross have filed cross motions for partial summary judgment. Docs. 15; 16. The Plaintiff alleges that the Defendant violated sections of the Fair Debt Collection Practices Act (“FDCPA”) and Georgia Fair Business Practices Act (“GFBPA”). Doc. 5. For the following reasons, those motions (Docs. 15; 16) are DENIED.

         I. BACKGROUND[1]

         This case arises out of the Plaintiff's charges he incurred from FedEx Freight after shipping items he sold to ANA Instruments over eBay. In January 2016, the Plaintiff's former employer allowed him to take discarded commercial electronic testing equipment. Doc. 15-5 at 15:5-6, 31:1-33:7, 65:23-67:1. The Plaintiff kept the equipment in his sister's garage for a few months while he removed some equipment parts to build mini-racecars and fans; he advertised the unused portions of the equipment for sale on his personal eBay account. Id. at 11:21-13:3; 27:4-13; 69:1-15. During February and March, the Plaintiff sold pieces of equipment to various buyers, and the money from those sales was sent to his personal bank account. Doc. 15-5 at 101:5-12. Id. at 71:8-73:10. On May 3, the Plaintiff contacted ANA; ANA agreed to buy a majority of the equipment and sent money to the Plaintiff's personal PayPal account, which PayPal then deposited to the Plaintiff's personal bank account. Id. at 77:14-83:10, 95:17-19, 99:1-101:12; Doc. 15-6 at 17-29. ANA also agreed to pay the cost of shipping and sent the Plaintiff a FedEx Freight bill of lading. Docs. 15-5 at 83:15-91:21; 15-6 at 22. On May 6, the Plaintiff took the equipment to the FedEx loading dock, and FedEx shipped the equipment to ANA. Doc. 15-5 at 83:15-91:12. According to the Plaintiff, after a FedEx employee at the loading dock reviewed the bill of lading, the employee told the Plaintiff that ANA was responsible for the payment of the shipment, and that the Plaintiff did not owe FedEx for the shipment. Id. at 91:6-12.

         On May 12, FedEx sent the Plaintiff a $1, 065.36 invoice for the shipment stating that payment was due on May 27. Doc. 15-6 at 30-32. The Plaintiff states he did not receive the invoice and thus did not make the payment. Doc. 15-5 at 101:13-103:4. After receiving another invoice on July 23, the Plaintiff called FedEx to ask “what was going on and how [he] owed them anything, ” and learned that there was a defect in the bill of lading that caused FedEx to consider the Plaintiff responsible for the charges. Id. at 103:16-24; Doc.15-6 at 38. The Plaintiff tried unsuccessfully to contact ANA about correcting the defect. Doc. 15-5 at 103:16-24. FedEx continued to send the Plaintiff monthly invoices. Doc. 15-6 at 44-56.

         In November, FedEx placed the Plaintiff's account with the Defendant, a receivables management company. Doc. 15-8 at 14. On November 8, the Defendant sent the Plaintiff a demand letter that complied with the FDCPA and GFBPA. Docs. 15-5 at 113:19-115:4; 15-6 at 62; 15-8 at 38. On December 5, the Defendant left a voicemail on the Plaintiff's cell phone, which said, “Hi this is Dominique[.] I'm calling from Synter Resource, on behalf of FedEx. I'm trying to contact the accounts payable regarding an outstanding invoice forwarded to our office for collection.”[2] Doc. 15-8 at 13. On December 8, the Defendant sent a second demand letter. Doc. 15-6 at 63. On December 11, the Plaintiff sent the Defendant a letter disputing the debt and demanding verification. Id. at 65-66. The Defendant claims that it never received the Plaintiff's letter. Docs. 15-7 at 37:18-22; 16-5. On December 23, the Defendant left another voicemail with the same message left on December 5. Doc. 15-8 at 13, 38. The Defendant continued to send demand letters to the Plaintiff until January 2017. Doc. 15-6 at 50-56. On January 17 and January 25, the Defendant left two more voicemails, both of which said, “[W]e have an important message from Synter Resource Group, this is a call from a debt collector.” Doc. 15-8 at 13. On February 5, the Defendant closed the Plaintiff's account. Doc. 15-7 at 241:11-20.

         On November 11, 2017, the Plaintiff filed his complaint, alleging that the Defendant violated the FDCPA and GFBPA by (1) failing to identify itself as a debt collector in its December 5 and December 23 voicemails, and (2) failing to cease its collection efforts after receiving the Plaintiff's December 11 letter requesting verification and disputing the debt. Doc. 1. The parties now file cross motions for partial summary judgment.[3] Docs. 15; 16.


         Summary judgment must be granted if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir.1996). Not all factual disputes render summary judgment inappropriate; only a genuine issue of material fact will defeat a properly supported motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact” and that entitle it to a judgment as a matter of law. Celotex, 477 U.S. at 323 (internal quotation marks omitted). If the moving party discharges this burden, the burden then shifts to the nonmoving party to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact or that the moving party is not entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324-26. This evidence must consist of more than mere conclusory allegations or legal conclusions. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Ultimately, summary judgment must be entered where “the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.” Celotex, 477 U.S. at 323.


         A. FDCPA

         The FDCPA regulates and restricts debt collection practices to prevent “the use of abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692. To succeed on a FDCPA claim, the Plaintiff must prove that (1) the Plaintiff has been the object of collection activity arising from a “consumer debt” as defined by the FDCPA; (2) the Defendant is a “debt collector” as defined by the FDCPA; and (3) the Defendant has engaged in an act or omission prohibited by the FDCPA. Reese v. Ellis, Painter, Ratterre & Adams, LLC, 678 F.3d 1211, 1216 (11th Cir. 2012). “As a remedial statute, the provisions of the FDCPA are to be construed liberally in favor of the consumer.” Hart v. Vital Recovery Servs., Inc., 2013 WL 12116580, at *5 (N.D. Fla. 2013) (citing Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 707 (11th Cir. 1998)) (other citation omitted).

         The Defendant argues in its motion for partial summary judgment only that the Plaintiff's transaction was not a “debt” as defined by the FDCPA. See generally Doc. 15-2. The Plaintiff argues in his motion for partial summary judgment that (1) he is a consumer; (2) the Defendant is a debt collector; (3) his debt is covered by the FDCPA; and (4) the Defendant violated two sections of the FDCPA, specifically § 1692e(11) and § 1692g(b).[4]See generally Doc. 16-1. The Defendant does not dispute that it is a debt collector or that the Plaintiff is a consumer. Doc. 15-2 at 4; see generally Doc. 17. But the parties have failed to show that there is no genuine issue of material fact that the Plaintiff's debt is covered by the FDCPA. Thus, the Court will not address the Plaintiff's remaining arguments. See Oppenheim ...

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